HAMZA Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petitioners are accused 1 to 3 respectively in C.C.No.474 of 1999 on the file of the Judicial First Class Magistrate Court-III, Kozhikode. By judgment dated 13.11.2003, the learned Magistrate convicted and sentenced accused 1 to 3 for the offence punishable under Section 379 read with Section 34 IPC, to undergo rigorous imprisonment for one year each and to pay a fine of Rs.1,000/- each and in default of payment of fine, to undergo rigorous imprisonment for two months each. The fourth and fifth accused were acquitted for the offence punishable under Section 248 (1) Cr.P.C . Challenging the conviction and sentence, accused 1 to 3 preferred Crl.Appeal No.733 of 2003 before the Sessions Court, Kozhikode. The learned Sessions Judge, made over the case to the IIIrd Additional Sessions Judge for hearing and disposal. By judgment dated 24.2.2006, the learned Additional Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court. Feeling aggrieved, the revision petitioners are before this Court.

(2.) The prosecution case in brief is hereunder : Accused 1 to 5 in furtherance of their common intention to commit theft of a motor cycle bearing registration No.TN-37Q 9386, owned and possessed by the defacto complainant, committed theft of the same on 14.5.1999 when the motor cycle was parked on the side of the National Highway at Panniyankara.

(3.) The owner of the motor cycle is the defacto complainant. He was not examined before the trial court. As per records, the defacto complainant filed a complaint before the police alleging that when he had parked his motor cycle in front of a mosque on the side of the National Highway at Panniyankara, the same was found lost. Accordingly, first information statement was recorded on 14.5.1999 and Exhibit- P4 crime was registered. The number of the motor cycle, engine number and chasis number are noted in Exhibit-P2 complaint. On 15.5.1999, Exhibit-P11 scene mahazar was prepared. PW3 is the Assistant Sub Inspector of Police, who has registered the crime on the strength of Exhibit-P2 complaint of the defacto complainant.